Time to take stand in defence of free speech

Professor of Law at the University of NSW

"The state of Australian law reveals a contradiction at the heart of the free speech debate." Photo: Alex Ellinghausen

Australia is in the midst of a free speech debate that threatens to go nowhere. Attorney-General George Brandis has argued that the nation has too many laws that trample on this freedom. He is right, but has not proposed a solution. Indeed, he seems strangely averse to suggesting the obvious, that freedom of speech must receive stronger legal protection.

The federal government has lost the battle on section 18C of the Racial Discrimination Act, but will have more to say on free speech. Brandis has asked the Australian Law Reform Commission to conduct an audit of all federal laws to identify those that "encroach upon traditional rights, freedoms and privileges". The commission has until the end of 2015 to complete this Herculean task.

The commission will undoubtedly tell us what we already know. That is, a long list of federal laws compromise freedom of speech. Many of these make section 18C look tame by comparison. For example, Australia has laws that permit journalists to be jailed for revealing government incompetence or wrongdoing. In addition, anti-terror laws enable people to be jailed merely for their speech.

Identifying such laws will be useful, but this raises the more important question. What should be done about these laws, and how can we stop similar laws being enacted in the future?

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Rather than just identifying problem areas, we should also look to how the speech is protected more effectively elsewhere. The right is typically one of the first things to be protected in any national constitution or human rights act. For example, the first amendment to the United States constitution famously proclaims: "Congress shall make no law . . . abridging the freedom of speech, or of the press."

These national laws provide strong legal protection for freedom of speech. They can be used to overturn restrictions on the freedom, and can prevent bad laws being enacted in the first place.

Among all democratic nations, only Australia fails to protect freedom of speech in this way. The best protection on offer here is a freedom to discuss political matters, which the High Court has implied from the constitution.

This implication is narrowly focused, and does not extend to artistic, commercial, personal or academic speech, except where they relate to how people vote in elections. Hence, communications between family members or artistic works that have attracted controversy, such as Bill Henson's photographs of children, receive no legal protection.

Not surprisingly, the implied freedom has proved a frail shield. The High Court has only invoked it twice to overturn a law: once in 1992 to strike down restrictions on political advertising; and then in 2013 to invalidate a NSW law banning corporations, unions and individuals not on the electoral roll from donating to political campaigns.

This means that parliaments are usually able to act without restraint when it comes to taking away a person's freedom of speech. This is evident not only in federal laws, but also in Queensland's anti-bikie laws, which subject a person to jail for speech that associates them with a bikie organisation. Another example is an extraordinary bill being debated in Tasmania's parliament that will subject protesters to mandatory jail terms.

The state of Australian law reveals a contradiction at the heart of the free speech debate. Our political leaders describe freedom of speech as being sacrosanct, but, in practice, enact laws that compromise the right. Rather than being vigilant, they have been permissive in allowing the right to be eroded.

Brandis himself is an example of this. Despite his rhetoric about section 18C and freedom of speech, his government has announced a new anti-terrorism measure that will make it easier to ban organisations and jail their members merely for their speech. There is a clear and tested way of dealing with this problem. We should follow the path of every other democratic nation and impose checks and balances that prevent our politicians from undermining freedom of speech. This should be done by enshrining a general right to freedom of speech in the law. A national free-speech statute would override inconsistent state and territory laws, and set down a standard against which to measure other federal laws, such as section 18C.

The federal parliament has enacted a number of like laws for other human rights, including freedom from age discrimination and the right to engage in sexual conduct in private. Despite its importance, freedom of speech has never received the same protection.

In the longer term, protection for freedom of speech should be inserted into the constitution. This would provide the strongest form of protection, and allow the High Court to strike down federal laws that infringe the freedom. If we are serious about protecting freedom of speech, it deserves the sort of protection that only the constitution can provide.

George Williams is the Anthony Mason Professor of law at the University of New South Wales.

62 comments so far

Firstly the debate should not be led by shockjocks and the like. Secondly what point is free speech in a nation with such high media ownership concentrated in the hands of a few? Give usdecent media owernship laws and we would not have such a crackpot government in power, driving everyone bonkers.

Commenter

Juan Term

Date and time

August 25, 2014, 2:30AM

Agree with you first point Juan. As a supporter of removal of 18C I don't want those found guilty of vilification in the past and shockjocks who egged on their listeners to head down to Cronulla 10 years ago leading the debate on this. Brandis coming out and saying "you have the right to be a bigot" painted all the supporters of the removal of 18c as bigots. I've said in the past, Brandis is too ideological as an AG. If any minister needs to be impartial and objective it's the Attorney General. He needs to go and be replaced. He is a liability that will gift the opposition in 2016 and this country can't afford that.

Commenter

Piped Piper

Date and time

August 25, 2014, 4:28AM

Surely there is something wrong in changing our laws to further empower people like Jones and Bolt to spread their poison ? What do they want to say that they cannot say already ? I think they've said enough. The Cronulla riots should have been enough to get Alan Jones defrocked. And Andrew Bolt's lies about the aborigines well justified his treatment under the law. It is about time we voting taxpayers insisted that there be some common decency in the proceedings, instead of this continual barrage of absolute poisonous crap which started with one deluded person's unjustified desire to grab power.

Commenter

adam

Location

yarrawonga

Date and time

August 25, 2014, 4:31AM

PP - were you in Sydney when the riots took place? Do you really swallow the left line that the Cronolla riots was caused by Alan Jones? Come on, I thought you were smarter than that. That was just an easy cop out by the left for the issues that were happening. But I agree that 18C should go. It just makes it easier for the left to shut down legitimate debate.

Commenter

Southpark Conservative

Date and time

August 25, 2014, 4:44AM

@Southpark. Never said Alan Jones caused the riots. Individuals who went down there are responsible for their own actions. Alan Jones did egg on some with his provocative language and gave the national day of action a voice and promotion.

Commenter

Piped Piper

Date and time

August 25, 2014, 5:05AM

PP - Again, do you think that young people actually listen to Jones? I listen from time-to-time but I am a middle aged man. The young people involved in the riot would not have been listening to AJ, they listen to FM stations. Jones articulated the issues. The issues that 18C wants to stop us from talking about.

The media in Australia should be ashamed that they support the suppression of free speech. If Jones bears some responsibility for Cronulla, then the mainstream Media, mainly Fairfax and the ABC, bear the responsibility for killing free speech. What sort of country do we live in where somebody is branded racist because they said we should not allow people to identify by race and that we should all just identify as Australian?

Its pretty warped. But PP, you and I know that it is not about issue, its about side. All those here rallying behind 18C would switch sides in the blink of an eye if Labor came out against it. Suddenly Fairfax would change its position from 90% for 18C to 90% against 18C. That is sadly the way politic in the media, especially the left media, has gone.

Commenter

Southpark conservative

Date and time

August 25, 2014, 6:07AM

One major point about concentration of media ownership and freedom of speech; right wing media uniformly do not permit open forums such as this one. Right wing commentators never ask that the average person have a say. Instead, they want to keep the megaphone for themselves and indirectly for their owners.

Commenter

Good Logic

Date and time

August 25, 2014, 8:45AM

Murdoch ran The Punch Forum until the conservative idiots got roughed up too much and then he shut it down. Try posting even a very subtle anti-Abbott comment on Andrew Bolt's blog or the LNP Facebook page - now there is a challenge. 'Freedom of speech' is only free to the acolytes otherwise strict censorship applies. 'The system runs on bullshit' and Brandis is part of helping that to happen.

Commenter

adam

Location

yarrawonga

Date and time

August 25, 2014, 9:22AM

What is Australian exactly Southpark Conservative? My family have been here for 8 generations, and there are large sections of Australian culture that I do not identify with and that I dislike intensely. I so hate the nationalistic garbage perpetuated by conservatives who think they have the right to tell the rest of us what it is to be Australian. Free speech is well and good, but if you have nothing nice to say, then keep your trap shut.

Commenter

Rathenn

Date and time

August 25, 2014, 9:30AM

Agree Adam,Freedom of speech in this country would be vastly improved when we ban foreign nationals from owning any newspapers and television stations. Then limiting the number of newspapers you can own to two. Get some diversity of opinion out there, not just the rampant right wing mouth pieces. This country sorely needs some centrists political parties and media organisations.